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Visa Issue Latest Wrinkle To Complicate Street Performer Concerns

OCEAN CITY — A relatively new wrinkle in the ongoing issue with the street performers and Ocean City surfaced recently when it was learned many foreign student-workers in the resort are working the Boardwalk in popular character costumes and collecting substantial amounts of tips in violation of their J-1 visas.

While a concern for many Ocean City officials this summer, United Work and Travel, a division of American Pools, which is one of the major sponsors of foreign students working in the resort on J-1 visas, recently became aware of the problem and officially brought the issue to the attention of the Mayor and Council.

After United Work and Travel coordinator Annemarie Conestabile met with Mayor Rick Meehan on the growing issue, the mayor reached out to the Department of State for guidance on how to handle it, seeking a directive from the State Department.

“This is an extremely new issue,” she said. “It has really become an issue in Ocean City. I conferenced with the mayor and he really wanted to have some kind of directive.”

Following that discussion, the State Department issued a directive outlining the federal government’s position on the issue. A copy of the unclassified memo was shared with this publication by a local business owner this week.

“It has been brought to the attention of the Department of State that suspected J-1 participants are dressed in popular character costumes, posing for photographs with tourists on Ocean City’s Boardwalk,” the memo reads. “It has been alleged that there are a number of J-1s participating in this activity and they are being driven to the Boardwalk in passenger vans, and it appears that someone is assisting them with this activity.”

From the State’s Department’s perspective, the student-workers collecting tips while dressed in costume on the Boardwalk violates the terms of the J-1 visas because it is essentially non-documented, non-reported and non-taxed income.

“We understand that payment for this activity is by the tips received from tourists,” the memo reads. “This being the case, this job placement is prohibited since it does not meet regulations. It appears this may be a second job for J-1 participants and is not being reported to sponsors.”

For foreign student workers dressing in costume, collecting tips for pictures taken with tourists is apparently a lucrative business. Unfortunately, it appears not all of the money collected is going into the pockets of the foreign students working the Boardwalk.

“The rumor has it they are making sometimes $2,000 to $3,000 per week doing this, which is a lot of money for anybody,” said Conestabile. “The other rumor is there might be a coordinator taking the J-1 students in costume to different locations. A third party with a van might be dropping off the students and that is a concern, not only because it violates the conditions of the J-1 visas, but because someone might be exploiting these kids and taking their money.”

It’s uncertain just how many foreign student-workers are dressing in costume and working on the Boardwalk for tips, but it is clearly more than a handful.

“There are quite a few,” she said. “A handful to me means four or five, but they might number in the 20s. I’ve personally walked the Boardwalk and pulled three of my own students off. It’s a little difficult because there are quite a few with up there with full costumes on and you can’t go up and ask every one of them to pull their costumes off and check their identity. Honestly, there are a lot of performers up there in costumes and not all of them are J-1 students.”

While the directive from the State Department is just a week or so old, town officials are now wrestling with how to handle it from an enforcement side. Ocean City has battled with street performers on various issues over the last few years, including two civil suits on the noise violation for street musicians, First Amendment rights to freedom of expression, etc. and has come out on the losing end in most cases. According to Abell’s directive, the town and its police department have the right to enforce the foreign students working in costume for tips from a J-1 visa violation standpoint and a public safety standpoint.

“Please note that the police, Seasonal Workforce Committee, the City Council and the Mayor are all involved with this problem,” the memo reads. “It is a public safety issue for Ocean City’s town guests- some of the entertainers are forceful about being paid for photos for example and it is also very importantly a program issue.”

At Monday’s meeting, the Mayor and Council discussed the issue of the J-1 students dressing in costume on the Boardwalk for tips specifically and the larger issue of costumed performers whose identities cannot be easily learned in general. Town officials acknowledged it was a potentially slippery slope following the fairly recent civil suits that did not go the town’s way.

In June 2011, the council passed an ordinance requiring street performers to register at City Hall and pay a nominal fee for the registration. The ordinance also addressed where buskers could perform on the Boardwalk and included language implementing a 30-foot rule for noise associated with the performances.

Almost immediately, the town’s new ordinance was challenged by spray paint artist Mark Chase, who asserted it violated his First Amendment rights. A U.S. District Court judge ultimately sided in large part with Chase on the First Amendment issues, but the town prevailed on the location issue, particularly N. Division Street, which provides access for emergency vehicles. In 2013, a Boardwalk street performer who plays an amplified violin successfully challenged the section of the town’s ordinance regarding noise.

After the two defeats on busker-related cases, the town is clearly treading carefully with the rights of street performers, although the issue with the J-1 student workers is clearly a little different. While the foreign students are afforded the same First Amendment rights as U.S. citizens, the requirements of the J-1 visas prohibit them from performing to collect tips.

“In their opinion, J-1 students should not be doing this type of activity,” Meehan said. “There are very specific things the J-1 students can and cannot do, but the City Solicitor has informed me they still have the First Amendment rights as anybody else does in this country. However, if they are, by policy, not supposed to do a certain type of activity, then that is something that would jeopardize their J-1 status, and that is something that we did get a letter from the State Department stating that they did not approve that type of activity has described.”

The State Department’s letter was forwarded to the Ocean City Police Department, and according to Police Chief Ross Buzzuro, Lt. Mark Pacini is currently working with officers in how far they can enforce J-1 students from dressing in costume on the Boardwalk without infringing on the U.S. District Court’s ruling.

“Without going into too much detail, there are some things we are putting into place on an investigative standpoint,” Buzzuro said.

“We can approach anyone, but obviously we like to have a reason than to just arbitrarily ask for information, and I think that flies in the face of the ruling,” Buzzuro said. “For us to approach every performer and ask for credentials, I think is taking a step out of our purview.”

Councilman Dennis Dare pointed out other cities are having the same issues with costumed characters, including New York and Los Angeles.

“Our situation is with having child molesters with masks on covering their identity on the Boardwalk,” he said. “It’s that simple. We had a procedure to identify any convicted abusers in place and that was ruled unconstitutional. I would think if Spider Man is on the Boardwalk in costume disguising himself, that is suspicious, and I would hope the police would be able to ask for an identification to run not against their First Amendment right, but based on the fact that they are in a public place and they are in a costume masking their identity.”

City Solicitor Guy Ayres responded according to the ruling, being in costume is not a reasonably articulated suspicion.

“Our testimony before the U.S. District Court basically covered everything that is being said now,” Ayres said. “It was articulated by the mayor and it was struck down.”

While there have been few if any reported incidents involving the costumed workers and public safety in recent years, there was one fairly high profile case dating back six years. In August 2008, a 21-year-old Ukranian national was arrested on charges of fondling a 9-year-old girl, two teenage girls and a 32-year-old woman while dressed as the character Patrick Star from the popular SpongeBob Squarepants animated television series. The foreigner ultimately pleaded guilty to one count and spent 28 days in jail locally before being turned over to immigration officials.

Meanwhile, the emphasis in the State Department’s directive released last week is focused more on the J-1 visa violations than the public safety issues.

“We would suggest that sponsors act on this quickly, contacting their exchange visitors located in Ocean City and educating them that they are not to be involved in this type of activity and their obligation to adhere to regulatory requirements,” the memo reads. “Your prompt attention regarding this matter is appreciated.”

Conestabile said her organization is attempting to monitor its own student-workers in violation, but pointed out the directive allows the OCPD to get involved.

“Under this directive from the Department of State, if they are on the Boardwalk and have a tip jar, the police have the right to approach them,” she said.

For the student workers involved in the street performer game, the unreported, undocumented income is in clear violation of the terms of their J-1 visas.

“The J-1 students must be supervised at all times while they are working and they are not allowed to work for cash tips if they are unsupervised,” she said. “If they’re working as a busser or a server for tips, that’s allowed because they are supervised. In these cases, they are unsupervised and there is no documentation, no taxes taken out and no supervision.”